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welcome to this autism Ontario webinar direct funding and private support workers my name is Mathew Leigh and as always I will be your host all the DES today we have Cheryl Wiles pouring Cheryl thanks for joining us thanks very much for having me this is Cheryl's first time on the desk and the first time that I believe I'm interviewing a legal professional so as you guys are used to I got a lot of things I need to say off the top and today I've got one more thing a disclaimer so the information that we were providing today is timely it's important information that we all need to get our head around but what we're not doing today is providing legal advice and that pertains to a big part of what these webinars are is me getting you answers to your questions you submit your questions they come up here on my iPad and I try and get you as many answers as I can in the 60 minutes we have allotted for the webinar but today just make sure we are not in a position to be handing out any legal advice well I'm on it we are going to be referencing a series of resources throughout the webinar there's a bunch of them and I'll be talking to them at different times you can access them as always in the resource section and if you have any issues at all with the technology you can go ahead and click the Help button ok it was even more than I'm used to doing so with that out of the way we're gonna jump into this Cheryl thanks so much for joining us this is again like I mentioned a very timely and topical conversation but before we dive into that you tell me a little bit about poor in law your practice and what it is that you do on a day to day basis sure so I am the lead lawyer for labor and employment law at pauran law and my practice is dedicated to supporting individuals families and not-for-profits and charities particularly in the disability sector so I work with individuals who have disabilities or who are on the spectrum and their employment needs I work with families dealing with their employment related issues you know when they're engaging support workers which is a big part of what we're talking about today and I work with autism organizations with not-for-profit social enterprise charities with regard to their labor and employment needs so anything from hiring workers firing workers but that happen union negotiations that kind of thing sounds like a fairly specific practice that you have it is Quito be the origin story how you how you zeroed in on on this line of work sure so I personally did some volunteering as a young person in the disability sector and you know really felt that it was an area that I would love to you know dedicate my life to of course I you know went the Bay Street route for a little while but it was always a calling for me to come back to doing something that I felt really meant something and that improved things in the world and my partner Brendan pauran who was the founder of poor in law has family members who have disabilities and has really dedicated his whole life to disability so his practice covers other aspects of disability law our firm has lawyers that specialized in a variety of different areas but all linking to and specializing in disability specific issues in those legal areas so family law wills estates and trusts corporate law but for people and in the disability sector so today we're gonna talk about direct funding we've been talking about a bunch here on the desk because a big changes did occur paying for support but you're a legal labor lawyer why why do we need a lawyer to explain this stuff to us why aren't we talking to someone from the government what's important about today's presentation that we need to bring in a professional like yourself yeah I think that's a good question and direct funding and self funding for supports is engages a lot of employment law issues right the second we go from government providing supports or a third party agency providing support it used to be the way that it used to be you know if it's a group home if it's a day program somebody else is responsible for hiring the workers paying the workers firing the workers that they need to and now in this new sort of realm that we live in the government is increasingly shifting funding away from charities and not-for-profits you provide those direct supports towards families and that means that families are increasingly stepping in the role of employer right the families are the ones who are recruiting hiring firing and managing workers and so those all engage employment law issues and you know what I have seen in my practice over the years is there is an increasing number of families who are having a wake up call too late when a worker has already sued them or a worker has already gotten injured on the job and by far I mean that's not the majority of cases but I think families being educated about what the risks are what their obligations are and helps them to organize how they engage workers so that they are protecting themselves right so last time we were here we talked about parents going from caregivers to accountants and now we've got employers on the on the list okay so we're gonna start off with the various funding types let's start with the ontario autism program what did what does that entail okay so ontario autism program is funding that's available for children and adults with or young people with autism or who are on the spectrum and it's available on his historically has been allocated on a needs basis okay it has historically substantially been flowed through transfer payment agencies many of whom would provide the direct support in terms of autism therapy and so forth for for people on the spectrum and the change that you'll be very familiar I'm sure with the changes that have happened over the past couple of years but what we've seen is a decision by this government to move towards direct funding of autism funding and that means that parents are stepping into the role of receiving dollars directly and then having to pay out-of-pocket using that funding directly so as I said that is that is where we get into that scenario of am I now an employer right historically that funding was very often flowed to it transfer payment agency and that transformation agency had full-time support workers or full-time Haverhill consultants and so forth who were actually delivering the therapy in house and now we're we're looking at situations where that funding is being transferred away from the agencies towards families and then families are then procuring or buying services maybe from that agency or from others in the community and it's a flat rate or something like that now something yeah so it used to be again as I mentioned more needs-based and now we're looking at caps of proposed caps of $5,000 for older children a cap of $20,000 for younger children but you know there is still in in theory a possibility that those caps will go away we just talk there is some talk going on but we still don't have any concrete idea about what it's going to look like young is six and below I believe so yeah we'll go to the autism Ontario website the all the information will be there for sure or at some of the resources when we get to that point but there are some special things that are in place for their older adults those on the spectrum that are 18 plus we call the passport funding what's that all about okay so passport funding is funding that's been around for quite some time now it is funding that is needs-based and it is up to $35,000 a year depending on again the needs of the individual their caregiver and their circumstances this funding can be used for community participation supports it can be used for respite and by respite I mean caregiver relief essentially so parents mom and dad want to go on a vacation for a week the respite dollars could be used for the person to stay with a respite worker or or elsewhere in the community with a transfer payment Agency perhaps on a respite basis so the passports can be used pretty flexibly and you can be used for camp and that kind of thing and and this is direct funding as well right so the direct funding means again the money is going to the person the person is supposed to use it to purchase supports right whether that's from an agency or from private individual in the community and although you are telling me before that the Liberal government did like a blanket $5,000 this one is need space up to 35 K mm-hmm similar to the way everything was done before we have a question from our audience on that topic asking us if you know how passport funding is prior priority determined how is passport funding priorities determined right so um in terms of who's going to get it and who's gonna get those higher amounts of dollars it's really going to be a reflection of the living circumstances of the person it's going to take into account the circumstances of the caregiver essentially the more closer to a crisis you are the higher amount of passport you are going to get higher behaviors is very often going to translate into higher dollars as well right so it should be the people that are in more need are getting are getting more yeah unfortunately I don't know that that's what we see and you know very often there are folks living in a group home setting so they've got full time 24/7 residential care and they're still getting $20,000 in passport where you might have an individual living at home with elderly parents who's getting only $5,000 so you know the needs testing is not perfect by any means okay we could probably talk all day about UC and where to go but we're gonna move on because that's not what today is about but maybe we will come back and we will handle that on a later episode there are some other places to get money right some federal benefits and things like that yeah there is the child disability benefit that comes from the federal government again it's a smaller amount of funding it's about twenty eight hundred dollars per year at a maximum and it is means-tested which means that you know the higher your family's incomes a lower amount of money you're going to get so again smaller amounts of money but when you bundle all of this together if you put together your OAP funding if you and then you put together your child disability benefit and funds that might be coming out of mom and dad's pocket which I imagine yeah people have to do these days and absolutely you're getting into the situation where you might be hiring workers and for quite a bit of time in any given week and generally speaking and as we'll talk about later in the presentation you know the more money you're spending on a worker the more hours you have a worker with you in any given week the greater the likelihood that that worker might actually be your employee right and that's the gist of why we have a lawyer on the desk today okay let's talk about the law now let's talk about paying for support in this changing landscape what do parents need to know I think that's you know that is the essence of it parents need to know that by virtue of the law here in in Canada and abroad you know the laws about who is an employee and who is not an employee are pretty standard you know they're pretty well entrenched and they apply equally to a family in the same way they would apply to Walmart okay right and so when you're paying for support what you're really looking at is you're either contracting with an agency right right you're contracting with a self-employed worker or you're contracting with an employee those are the three standard ways that you're going to be engaging a worker to provide supports to your loved one with a disability or who's on the spectrum and and and what that looks like is it essentially creates a contract and this is an aspect of contract law and a contract doesn't need to be written down to exist it doesn't even need to be verbalized it can be implied it can be implied what's an example of an implied contract well you know if we put it break it down into its simplest form an implied contract would be walking into a store yep picking up a stick of gum putting it on the counter and the worker behind the counter and holding out their hand for the dollar value that in itself is it I'm dating myself the the reality is that in itself is it's a form of contract right so you don't necessarily have to make everything about your relationship with a worker explicit in order for there to be certain aspects of law implied into the relationship and one of those things would be for instance and if if a worker is is your employee and we'll talk about the test for employment and by operation of law if you don't say anything different if you don't write anything down differently they are entitled to what's called reasonable notice of termination right so this common-law notice is what is commonly referred to as and this applies automatically unless you do something different if you unless you have a written contract that says otherwise signing to me based on my any other actually I have with a lawyer but also in general that it's gonna be good for parents to get into the habit of having written contracts of some sort even if they are basic and simple correct yes okay absolutely I would be a recommendation yeah okay there is something called the Employment Standards Act how does that come into play with what it is that we're talking about today right so the Employment Standards Act this is legislation that essentially modifies the common law so you know we've just been talking about what is the law how did have our contracts created and so on so here in Ontario we've got and the common law which is judge-made law and we have statute right statutes are written laws that the government creates they're down you can very clearly go through them and see what all the various aspects of the damn the legislation is Employment Standards Act is a piece of legislation that sets the very minimum that every employee is entitled to right and the Employment conch and the Employment Standards Act applies if your worker is an employee if you are an employer but what it what it includes is very clear statements that the Employment Standards Act can apply even if you have a contract that says I'm not an employee or I don't get vacation pay or you don't have to pay me the minimum wage those types of contracts that say yeah I've been a way of my employment standards rights they are not binding so when I pay my son's babysitter yes less than fourteen dollars an hour am I breaking the law so there's exemptions for babysitters and and we're gonna we're going to talk about what those exemptions look like and I'm not asking I'm just making sure that you know ya know there's there's rules for who is an employee and who's not and and we're gonna get into how you break that down and how you determine that what you see on the screen before you right now on the PowerPoint is that what we're trying to drive home here is that just because you've got a contract that says my worker is not an employee doesn't mean this this webinar is not for you right the other piece here is that there is new law under the Employment Standards Act that says it's an offense to mischaracterize a worker okay right so and saying to a worker well you're not an employee and so you're not gonna get employment standards minimums like vacation pay and public holiday pay or the minimum wage right that in itself can be an offence now I don't want to scare families that is not what I'm here to do and generally speaking families are not the targets of this type of legislation but nonetheless the law does technically apply to families and I sadly have seen cases where families are getting tied up in litigation over this type of thing so that's why we're here today and we're in a gig based economy there's there's greater things at play here for the setting of new jurisprudence so you said you're not here to scare people and so we're gonna get into something here and this is once again guys we're here to educate and inform and take you through the information but we're gonna go through a couple slides we're gonna spend too much time on because I think we're to come back to them after we have to redefine things but the key rules that families need to understand and the first one is about miss classification how does this occur what do they need to understand about that so this is this is the new rule that I was mentioning right it is now an offense to mess classify a worker as a independent contractor or self-employed when they're actually an employee and we're gonna spend a good amount of time today talking about how you know the difference right but it is important to know that the government is on a bit of it or has been and this government maybe not so much but the previous government was on a bit of a tear on this issue they had posted on the Ministry of Labor website clear statements that say things like did you know just because you've signed a contract saying you're not an employee doesn't mean you aren't protected by the Employment Standards Act so very employee worker focused legislation so that's one thing we need to just keep in mind in the background here is that the wrong room well the the law Employment Standards Act itself no I mean the call it the focus to publicly put that out there is there been you know clearly this is not intended for parents in the situation this these are being brought up due to businesses that are abusive yeah there's there's quite a bit of abuse out there it's pretty sad to see there's many many employers or big companies that are making big dollars on the backs of workers they treat as independent contractors you may recall seeing Toronto Star blitz type coverage on some of the deaths that have occurred where workers from temporary help agencies perhaps have been treated as independent contractors they're not receiving training they have no benefits they're not being paid properly and because they're not receiving that training there's deaths happening on the job so this is why this type of protection exists is out there so much right now that's right and and unfortunately families who are not the big offenders here are getting swept up in that right but there are exceptions you put it right here domestic worker RCW what are the exceptions yeah so what you'll see on the screen here is a list of the Employment Standards Act again these apply only to employees and these are the key elements that families need to be aware of these are the things that really create potential liability if you're not meeting your obligations on this front so I'm not going to go into each of them there are links at the end of the presentation that help to clarify these things those links by the way guys you can go into the Resource Center and what we've done is we've aggregated all of the resources that Cheryl has put forward for us in the Portland law resources section and specifically to get more information on this as the Ministry of Labor the mo l fact sheet a couple of the other ones ESA overview as well in their compliance overview those are two that will help you understand a little bit more about this those links are really useful and the exemptions that you're mentioning the RCW that's a acronym for residential care worker and it's only available to families in very unique circumstances where the supports are actually being provided and in a unique scenario where essentially you've got a separate residence established for your child or loved one with a disability and the supports are being really run like a private group home essentially or or you know a private residential facility for one or more people with support workers coming in or residing there with the work with the person so you know I won't spend too much time going into it it's pretty fancy stuff and you know we do work with families to create these types of creative innovative residential support options for people because we know people want autonomy they want to live independently have their own homes they don't want to live with mom and dad forever and and these types of options can work really well especially as parents are aging and that kind of thing they're they're beautiful but they're complex and so you know I don't try this at home without without some advice right yeah okay all right so some other important legal issues that we need to be considerate of yeah take us through them okay so these are again and these are legislative protections that exist in Ontario the first one is the Human Rights Code and what that's really is about is not discriminating against people based on their their race their religion their gender their you know their ethnicity these are these are the types of things that are protected under the Human Rights Code and there is also what's known as a duty to accommodate under the Human Rights Code now a family's duty to accommodate is going to be pretty limited because and you know your your resources are very very few and far between typically as a family so I'm not going to dwell too much on this but it's just a good idea to know from a human rights perspective that you know posting a job advertisement that says you know we're only going to consider people of this nationality or what-have-you and is likely to result in some queries or questions or potentially complaints yes and there are exemptions for families who are engaging workers to provide personal support for a loved one with a disability but you don't know you don't want to have to explain that so just being careful not to you know set off alarm bells with potentially discriminatory looking job advertisements language is okay though right sorry language is okay well language Internet of itself if it speaks to ethnicity or it you know goes to national origin and that kind of thing and in language in and of itself can be a discriminatory issue you know for instance there is a right to require somebody actually speak English yes but unaccented English would be a problem yes what about foreign languages you know simplified Chinese Mandarin and that kind of thing you allowed to post that certainly if that is a bona fide need for the for the job right if the person they're going to be supporting only speaks Mandarin of course I'm saying you know the person needs to speak Mandarin is gonna be a legitimate work requirement okay yeah all right so the next couple of items here we've got the Health and Safety Act right I point this one out because it there is some mandatory training that applies and again this is not designed for families but sadly there's no exemption for families either the training is really easy to take its online mandatory training and I think we provided the links for the mandatory training in the resources section and you know I've never seen a family get in trouble for not providing this but as a best practice I have many families who do right and it's and it's really just about knowing your rights and your obligations to maintain a safe workplace it's good idea for families to take it because you know you might not understand this as a parent or a family member but when you have a worker come into your home all of a sudden you're home technically is a workplace right that's not just for employees right that's for contractors that's for anyone knows that is coming in well contractors are a little but different but you know I think that the key facts that we want to focus on here most of these legend most of this legislation is really about about employees and the CRA deductions and so on that's the next thing on the list there that's about employees but you know wouldn't you wouldn't otherwise know this but there is still even if your worker is an independent contractor there can still be obligations to do some filing for the CRA about that worker so we'll get into that a little bit more as well WSIB that's the workplace safety and insurance board and this is injury related insurance and under the law here in Ontario there is actually requirements that apply for employees even domestic workers people who are employed by families okay and then finally the common law and this is what I mentioned before and some key aspects there are the entitlement to reasonable notice in the event of termination and you know freedom from negligence and that kind of thing this this is what the common law is but in the in the employment context what we're really focused on is that those termination related entitlements okay so now we've gone through home I've experienced that all the staff that we need to be worried about that primarily has to do with employees so let's get to what I'm sure many people in the back are thinking is when is a worker an employee so what sort of defines that so now we get into yet another we get to human resource or HR HR law so take us through take us through this and so it's really important to know that human rights law and it does apply equally to people who are neurodivergent people who have have disabilities and it applies to their their parents and you know equally with Walmart right like I said you know some of what we're won some of what we see in the employment law context is that you know very often families think well this doesn't apply to me right and it very clearly does there's lots of case law out there in which families have been found to be employers and to be responsible for employment related obligations okay yeah example yeah absolutely so there's situations where a worker has indicated signed a contract and said I'm an independent contractor and I'm gonna get paid $25 an hour to provide these supports and you know six years later the worker turns around and says you know what actually I think I'm an employee and on top of that $25 an hour I want vacation pay and public holiday pay and that's certainly not budgeted for yes yeah okay so when our family is employers what are the what are the with the litmus test okay so the various factors that are taken into account when determining whether or not a family is an employer or not these are the these are the rules that sort of come out of the general business context and they're applied into the family context right because again families Walmart same thing from an employment law perspective so some of the factors that we're looking at intent is a big one and what do we mean by intent we mean what did the parties mom and dad and worker think about the nature of the relationship when they started out right did I think that I was going to be at the the mercy of the family with an independent on them and that they were gonna tell me what I was going to do on any given day did I understand this was gonna be my job right that this is where I report to this is my livelihood and that kind of thing is what we mean by intent and the best way to express intent is really through a written document and so what as I mentioned earlier having a contract that says I agree I'm an independent contractor and I'm not an employee and I'm not gonna have entitlements to employment standards related rights doesn't mean that the worker is not an employee that being said it's a good indicator of what the parties thought about their their status so intent is important but it won't Trump the facts right so if you have a contract that says I'm an independent contractor but then in practice the worker is really looks like an employee and in the everyday operation of the relationship then that con tractor is not gonna hold up okay okay so what really matters is what's happening on the ground right if it walks like a duck it quacks like a duck it's probably a duck control is one of those factors that determines whether it's a duck or not right so control is who's in charge of the who what where and when of the work who schedules the work who says where the work is going to happen everyday who says what meals are gonna be created what kind of services are gonna be performed where they're gonna be performed and so on the person who gets to make those decisions is typically the person who's gonna have more control in the relationship the person was more control is typically the person who's the employer whether it's the worker if they have more control they're self-employed if it is the family who has more control the family starts to look more like the employer okay now none of these factors is you know in a fait accompli right and none of them is gonna be you know determine it by themselves you know ownership of tools there's another one obviously sounds like it comes out of the business contact yes we're not talking about hammers and nails here but we might be talking about training materials right so if we're talking about some autism therapy for instance if the therapist that you've hired is coming in bringing with them all of the tools and resources they need to deliver that therapy then that starts to look more like they are self employed because they're making an investment in having those tools creating those tools purchasing those tools probably we're providing the supplies that looks more like a independent contractor or a self-employed person on the other hand if the family is providing everything and the worker really just has to show up and and do what the family says on any given day again that's looking more like an employee risk of loss chance of profit you know that again looks a lot more like the business contacts but if we apply that into the family context what we're really trying about is again is there some kind of an investment being made by the worker in the work right are they bringing with them any tools or resources are they giving up the opportunity to work for others right is there not a bit isn't it because I know then you know when you can't be a contractor if you only have one client right right like like you'll get if you say you're a contractor you'll get pinged by the CRA if you only had this one customer you're working for all the time yeah that's I mean it happens right there's lots of folks out there doing that kind of thing in the family context essentially the greater reliance that the worker has on the family for their livelihood the more likely they are to be an employee so for instance if they are working for a family 40 hours a week yeah and it's pretty it's looking a lot like an employment relationship it's on the other hand they work for one family on Mondays they work for another family on Tuesdays they work for three different families on you know Thursday and Friday that starts to look more like a typical self-employed person and you know there's a blurring of the lines here right it's a it's a spectrum there's not an any one determinative factor but certainly when we start to get into a situation where a worker is dependent on a family for their livelihood if that family fires them or lets them go and there isn't and therefore they lose that income and they can no longer support themselves that's starting to look like the type of scenario where a court the CRA ministry of labor is sympathetic is more likely to find that worker to be an employee right exclusivity we see it on that so yeah as well exclusivity is a big one the pay Arrangements so a typical contractor is invoicing right right as opposed to getting yeah just getting a default payment family managing a timesheet and then paying out a check or payroll of some kind as opposed to the the contractor saying well here's my invoice and now you're gonna pay me pay me within two weeks right that's that's more typical arrangement and certainly having an invoicing system is a recommendation if you're going to try and characterize that relationship as an independent contractor relationship and the employment type arrangements for the work that that's happening so the scheduling procedures how the the worker is the trained and so on if if a family has a bunch of employees for instance and then has one person that they're going to treat as an independent contractor that starts to look a little bit questionable the law is gonna be a little bit more skeptical about this because generally if you've got one person being treated as an employee and another person being treated as an independent contractor and they're both doing the same work under the same conditions they're both going to be treated as employees that's part of what's going on in the broader scale that's causing some of the some of the magnifying glass to be on companies anyway not families come questions from our audience before we continue to move on first one how much notice should an employee be given upon termination yeah that's a great question it's really going to be driven by the terms of your employment contract that's a big determinative factor in what you're entitled to on termination and if you're if you don't have an employment contract then the very minimum you're entitled to if you've been let go without just cause is going to be usually range between zero and eight weeks notice per year of service under the Employment Standards Act plus potentially severance pay which depends on the size of your employer and how they're how big their payroll is and if you don't have an employment contract on top of the employment standards minimums there's also something known as reasonable notice of termination and that can range between three weeks to six weeks per year of service depending on your seniority how many years of service you have how how high-level that your position was and your prospects for reemployment all of those are factors that go into it there's no hard and fast rule that says what any individual is going to get now of course this only applies if it is a without just cause termination in the event of termination for just cause you're looking at zero so that's something to keep in mind and the ESA website which we referenced before and I'll reference it again is where you find this information if you are in a complex situation do not do this at home all businesses have lawyers and HR professionals that they consult you should do the same next question before we move on to you examples of workers who are employees if the therapist requires supervision does that make an employee or an independent contractor and why okay that's a great that's a great question so you'll sees typical examples of people who are or are not employees the therapist is in an odd situation right because very often they come into the relationship with skills and training and knowledge that the family does not have so it's a little bit more like know this is a you know really basic analogy but it's like when you call your electrician this is somebody that you don't typically have the ability to supervise you're just like I'm hiring a professional come on in do your thing and make it work and and very often a therapist is in the same boat right a therapist has that training so the expectation is they come in fully loaded with whatever tools and resources they need to do the therapy with all those skills mum and dad are typically not directing controlling supervising yeah if we start talking about supervising the therapists you know I tend to wonder is this really a therapist because you know typically the the definition of a therapist is that they know what they're doing without mom and dad and directing them now very often in in autism services mum and dad have received perhaps just as much training or have more life experience and knowledge about what their child specifically needs in the therapy context so you know an orientation to the needs of the child perhaps and even involvement in the therapy isn't necessarily going to make the therapist not be independent yeah right and just because mom and dad are participating and you know I think there we have to draw the line between an orientation to needs of the child and participation and therapy right that's right so this was back the other litmus test of who is directing what's going on right regardless if this parent has to supervise or feels they need to supervise this therapist the therapist is driving the therapy based around their training and everything else yeah that's right now when you know it big factor there is gonna be around the exclusivity of the relationship to you right very often a therapist is working with multiple children she's managing her own schedule and and really creating her own ability to make a livelihood out of doing this work because she's able to say well you know what I'm gonna work with so-and-so from four hours in the morning I'm gonna work with somebody else for four hours in the evening and and cobbled together a full time job right out of the therapy and and that ability that control to an ability to create her own life balance is going to be determinative of that or help to determine that that person is self-employed if we're talking about a therapist who is working full time with the family for a year that's got to be an odd that's looking a lot like an employer language that's got to be that can't happen very often there well you know there are those individuals out there who have $80,000 a year or historically had $80,000 a year in funding we know that's not necessarily happening anymore but and certainly there's room there for two full-time therapists at that rate right so it is it is possible that that could be a therapist being you know having a 40-hour a week with one family and but you know treating that person as an independent contractor even though they're a therapist is still going to be risky because you've got those factors of exclusivity dependence those are big drivers for for decision makers when they're determining who's an employee and who's not okay the more money you're spending the more closer you're gonna be tied to this okay so we got some examples of workers being employees there's some real-life examples take us through these and would you know so the sitter baby sitter is the common word for it is somebody who provides occasional care for a minor a few hours here and there are generally not an employee I think our parents out there feeling pretty good about that one live in support and live out nannies are generally considered to be employees because again we've typically are having that degree of exclusivity that comes along with it and nannies and live-in support workers are typically at the mercy of the family right there being supervised even if they're not supervised because mom and dad aren't home all day they're still being directed heavily by and controlled in terms of where when how and what the work is by mom and dad right therapists tutors coaches and professionals again typically are not employees because they have that control they are typically have multiple clients they're not in that exclusive relationship you know barring aside those cases where we've got $80,000 going to one family and they've spending it all on one or two workers then we might be talking having a different story but generally speaking they're going to be independent and self employed unless they're working for a an agency right full-time support workers again usually an employee and that's because they're full-time they're dependent on the family that exclusivity is there and and usually with that comes the control and the and and so on as well part-time Support Workers is really going to depend on the regularity of the relationship and the hours worked and that dependency factor if we've got somebody who's working one day a week and and they've got lots of other clients that they're working for they've got a full time job elsewhere and this is just a side gig where they say hey I have five hours here it can work for you mom says thank goodness yes please come and provide some support that's starting to look more like a self-employed person or it's not that it doesn't tend to look as much like an employment relationship respite in a respite providers home is usually not an employment relationship the reason being usually that respite providers got all the control over their own home and they have a fair degree of ability to say yes or no to the work and they have again usually their own self-employment and so forth and respite work in the family's home is again just like the part-time workers going to depend on the degree of dependency the exclusive exclusivity of the work and and how regularly it's happening a respite worker you know who's coming to your house every day of the week is not really a respite worker anymore right this is just a full-time employee but you know that respite that happens for one week a year when mom and dad want to go on a vacation that's probably not an employment relationship so I'm feeling a lot better not only about me not breaking yes babysitter but also just in general because it sounds to me like number one you're probably spending a considerable amount of money if you're in the employee or situation and number two it really comes down to the amount of time of these people are spending with you and it seems like there's a much clearer divide than you know when I was first looking at those at those slides and although we know that there's risk before we move on to the rest side you have one question if I've got a someone who I believe to be a contractor and I found them and I'm giving them let's say two days a week or a day and a half a week but that's their only income they don't have other customers other clients they just have me or my or my or my son as a client do I have additional responsibilities to them because this is the only even though I'm not paying them enough to live in today's world do I have additional responsibilities to them because they don't have other customers it's liance yeah it could create an increased risk of them being your employee when you think about it the kid who works for four hours a week at the gap is still an employee right yes and so you know just because it's only a few hours doesn't necessarily mean it's not an employment relationship and what do we want to do with that right and and I think the reality is that we have to look at risk not just from the technical rules about who is what but also what is the scope of exposure right so with a person who only works let's say eight hours a week and the risk is no is lower because a they're less likely to be found to be an employee right but also because even if they are found to be an employee the scope of the exposure is lower because vacation pay and public holiday pay is calculated based on how many hours you work and what your pay is so if you're dealing with a worker who's working 40 hours a week and earning $1,000 a week let's say and vacation pay and public holiday pay on that is gonna be a lot higher than it is on somebody who's only making a hundred bucks a week right right so the the amount of exposure is just a lot lower okay and and so and the workers themselves don't tend to think of that sort of casual occasional type of work arrangements even if it is steady once in one day a week they don't tend to think of it as employment they don't tend to think of it as this is my job and I have employment related rights the same way that a worker who's working for you full time is probably thinking about it we don't tend to see complaints being filed by workers who only work once a week okay and you know the the exception to that might be where they get injured on the job and though that type of scenario can drive people to do dramatic and and uncharacteristic right right and I think that's that's really the crux of it is that generally speaking your workers are not out to get you right they're not trying to make Bank by pulling one over you on you saying they're an independent contractor and then claiming no that's not what workers are they're most people who are working in this sector are really good people with strong values and they're very empathetic with family circumstances and so on and you know usually the types of scenarios that are going to drive people to make complaints against a family is where they are themselves driven to extremes by an injury or because they are dependent on you for their livelihood and that goes away and they're desperate right so well you know an ideal world we're doing is structuring the relationship so that that doesn't happen right right well this leads really well into this next question because it's I knew it was gonna come up at some point in time I almost made a joke about it earlier but what if the worker is a family member and varies in respite hours in the house and out of the community do parents need to treat them as an employee and pay CPP WSIB for them that is a that's a tricky one I think it is very uncommon for families to treat family members as employees and certainly for passport dollars and there is an ability to pay that money to a family member not the parents but to other family members and it would be a contract and that would be in place right family doesn't mean that they're not it's true you know I think that we look at a couple of things we look at what is the big thing is what is the risk is that family member going to report you to the Ministry of Labour probably not are they gonna report you to the CRA probably not because they're pretty happy getting that money under the table that's right are they going to sue you probably not right and even if they want to sue you is pretty likely you're gonna be able to work that out having other family members perhaps interesting you can solve the problem together so I have received this question before and there isn't any easy answer you know the technical answer is probably yeah you should be treating them as an employee if they're working that full-time contingent if they're if they're me checking all of those boxes from a employee perspective technically yes practically you got to just think about the nature of your relationship and make a calculated decision as to whether or not you think you want to go through with the formalities of the employment relationship and certainly there's ways of reducing your risk and we can you know we're going to talk about that how to reduce the rest throughout work well if you're watching don't get any ideas yeah all right so whisk yes mitigation of risk is what we all have to do what are the things that people should be worried about one of the risks yeah so you know I don't know I don't want anyone to necessarily be worried I was poorly right and what we want is people to be aware of what could result in complaints being made so there's there's a couple of different forums that complaints can be made in revenue Canada Canada Revenue Agency is being is one of them and that was one of my very first cases involving a family way back when yeah there's a family who had somebody working with them as a live-in caregiver 40 hours a week and weekend in week out and had treated her as an independent contractor she was let go for you know of all things levy the gate to the pool open and unlocked with the person with a disability you know in the backyard and so on you know big risk so quite rightly mom and dad said your employment is or your your relationship is over and and they hadn't been making deductions or remittances to the CRA when that relationship came to an end the worker said well I want a I of course there was no II I because no no remittances have been paid so in that case Canada Revenue Agency came after the family and that that is typically the only way that CRA finds out about these types of relationships very often it's because the worker then goes and says relationship is over I need an e I and there isn't any yep right Ministry of Labor is the other forum that workers typically go to and that is what I see most often is claims being made to the Ministry of Labour because there's no fee for absolutely you know going through that process you don't have to have a lawyer you don't have to pay anything to file a complaint and the Ministry of Labour actually runs the show for an employee they are really there to protect workers right so they do it all and workers don't have to worry about anything and you know the the amounts that a worker can get through the Ministry of Labour tend to be smaller than what might be available through a civil court procedure but it's easier to manage for a worker so we do tend to see Ministry of Labour complaints typically around termination pay vacation pay and public holiday pay those are the big ones yep okay WSI bean is another where a worker gets injured on the job and they were required to have WSI be the family was required to have WSI be they didn't have it worker gets injured and who's gonna hold who's gonna pay the bill right that does not happen very often and but it's always a possibility so it's something to keep in mind and then finally civil liability which is you know small claims court actions and we do tend to see those happening as well because they don't judge us but there are a lot of lawyers out there who take they take claims on a contingency basis which means the worker doesn't have to pay out of pocket and you know the lawyer will advance a claim they write a letter to the family and family doesn't pay up then we're off to the small claims court or the or the civil courts yeah so most commonly these types of complaints are coming up from a worker who as I mentioned before is is desperate right you're not typically seeing these types of complaints being filed by a worker who is currently engaged currently being paid by a family they don't want to rock the boat yep right so we typically are not seeing these unless the worker is let go yeah right the other con the other time that we sometimes see these is if you know a claim is being made to the CRA and or the worker has reported something on their t4 that sends up alarm bells for the CRA yes right so you know and that can be when somebody who's treated as an independent contractor reports earnings or something and CRA turns around and says well where's your t4 and the worker says well I don't have one my work my employer didn't give me one and that's when CRA comes knocking okay I'm gonna ask you this question and then we're gonna have to move it through all we have practices okay is an employer allowed to tell a therapist professional tutor you see etc that they are not allowed to work for another employer hmm so that's a good question that's what we call a restrictive covenant yeah that might be in a contract it's not very common to see those types of things sometimes we will see them and we typically only see them in competitive competing work environments right so I'm an IT developer and I'm working on a top-secret program for one company my company does not want me working for my competitor right we don't typically see it in a family context but there is nothing stopping a family from doing that the circumstances where that is going to be enforceable is typically where it doesn't stop a family from or that doesn't stop the worker from being able to earn a living right and you know you could if I struggle to understand where that would be coming don't anything have a small time I mean you don't want to come in and tired they don't can't go at night and do another moon light in another job and there it's a standard employment contract right yeah that's what it comes down to it yeah and I'm gonna think you're gonna probably have difficulty enforcing something like that because it what the courts call it is an unreasonable restraint on trade I know that's very businessí language but that's that's typically reasons why a court would find that it may and a non-compete non-compete yeah is unenforceable you know you could the way to typically deal with that if you're a family and you're concerned about your worker coming in late or coming in exhausted and and you know sleeping on the job or what have you is as a disciplinary issue right this is a performance man and device you have to fight another therapist yeah scenario okay we're gonna move on here about we know the difference now yes and we're talking about making informed choices independent contractor employees staffing agency noble models so let's get into independent contractor okay so most people would prefer to go the independent contractor here's the reason guys so you see on your slip on your screen now all of these bullets start worth the word no yes because there's very little in the way of responsibility to an independent contractor yeah they are responsible for filing their own taxes they're responsible for their own insurance they are not entitled to vacation or public holiday pay you don't have obligations around WSIB and you know so it's it's very restricted in terms of what families have to do when they have an independent contractor right and there are still best practices okay right so on your next slide you'll see some recommendations and there's a lot here and it's not like you have to do all of them but every little thing helps guide to either a prove the person is an independent contractor or be and help to protect you when dealing with the end of your contractor vulnerable sector screening is the the pinnacle of both options of employment and independent contractor you a vulnerable sector screening is essentially an enhanced criminal records check okay it's what you can get when your worker is gonna be working with and a person who is vulnerable right that way you know a little more about their criminal background if they got any charges pending if there are conditional discharges on their record these types of things are going to show up and you're going to know if this is somebody that you really want working alone with your loved one right right and a contractor agreement is always a good idea remember that intent it's not determinative but showing what the intent of the parties it was at the outset is going to be helpful you can include requirements around the worker having insurance typically if you're dealing with a therapist or a professional they're actually going to have insurance and it's a good idea to to make them prove it right if they are self-employed that's that's typically something they're going to have as a professional some of the other things that it's a good idea is to make sure that they know they are responsible for emitting their own income tax that they're not going to be getting a t4 and if it's it's a good idea to require invoices as opposed to keeping time sheets so they invoice you you'll get a bill you pay it and you keep your records they they show they sign off saying yes this has been paid yeah just like you would with your plumber your electrician right then keeping the records is a really good idea the last thing I'll mention here is that if the relationship changes over time it's important to keep that in mind because many families that I work with start off with a worker or a therapist and it's handy-dandy you know it's only one day a week or a few hours a week but the person is so wonderful and has such a wonderful connection with the loved one with a disability these increases exactly and all of a sudden you're at 40 hours a week and the person's not working for anybody else anymore you got to make the switch at some point right all right agency workers I think we may have special employee we skip sighs okay so the employee option is basically the opposite of independent contractor you will recall the slide that said no no no no on the employment slide it would say yes yes yes yes all that's right so you do have obligations around deducting and remitting to the CRA you do have obligations to pay vacation and public holiday pay and you know all of those things start to apply for WSIB perspective if the per worker is working for you more than 24 hours a week WSIB is actually mandatory so we're start to get into scenarios where there's a lot more going on there's a lot more responsibility on families and that's typically why they don't want to go this route yeah in most place like in my business and when I people that are contractors they want to be contracts just so much tax just for them to do so yeah managing their own calendar and that sort of thing do we find in this world that more people want the employee relationship like so we're in a situation where the employee the person wants the employee relationship where the employer or the families want a contract you know we at that juncture are not really so many families after talking to me I want to go the employment route they realize oh yeah that's 40 hours a week let's make you an employee yeah very often the worker will refuse to do so because they love getting paid under the table and that's a good reason why we don't actually tend to see very many complaints to the CRA yeah and and this doesn't actually come up that often because workers are happy not to have their income reported particularly if they have multiple jobs they like not having their income reported because their other jobs are already being taxed yep their income from you would likely be taxed at the highest marginal tax rate because it's over that you know that threshold so when we start to look at those types of things and yeah you're right and there can be a sort of a dichotomy where parents are actually ones who want to treat the worker as an employee and the workers don't want to and the reason that and there's still best practices if you choose to go the employment route in your worker and comes along for the ride then that's great and still do the vulnerable sector screening still do an employment contract yeah and the most important part of that employment contract is a termination clause that says your entitlements on termination are going to be limited to the employment standards and minimums only all right you what you're really trying to do there is cut off that common-law notice which can be unpredictable I gotta apologize to our audience I have not done a good job managing time we have a couple of things that we want to get to so we don't often do this we're gonna go a little bit long today guys not not too long just a little bit and because I keep having questions and a quick one that I do have is in any of our like when people are looking to do this for the first time I know often when I need to drop something for first time I go to Google and find it any of the resources do you have sample contracts or is that something that the government provides for employees contractors in terms of contracts there's not a whole lot out there and our firm is actually working on a free book okay together with community living Ontario with funding from the Law Foundation right we'll be available to families for free online that will have templates in it unfortunately it's just half-baked stuff so it's coming along what's going on some people are watching this in its archive on demand and you can go to the website and check for updates oh absolutely well run through these next slides really quickly if you like so there's many families out there who say you know what the independent contractor route just seems way too risky the employment route just seems way too much work I want to go there I what are my options and and an agency is an option right and that would mean that you're essentially purchasing supports from an agency provider in the community if there is one right right and that could be a temporary help agency it could be your local autism services organization what have you and and in that case you know this can be an excellent option they're taking care of everything you're kind of going back to the old school style although you have more control over the schedule over who you're choosing to work with your loved one and so forth right so there's pros and cons here the con is that it tends to be more expensive than doing it yourself although if you're meeting all your legal requirements the costs tend to sort of balance out rush you get time back right yeah easier yes you're no longer the accountant right so many families will go this route and they'll just pay it up and and it can be great some of the recommendations we have make sure you're using a reputable agency and the reason I say that is that there's a lot of mom-and-pop shops out there and I'm not knocking them know they can be great just make sure that they are they have WSIB that they are treating their workers as impor as opposed to independent contractors because that risk can transfer from an agency to a family if the agency is not paying their workers properly so and and you know the WSIB piece is really important because you don't want somebody getting injured in your home very often your home insurance will not cover that right so these are things to keep in mind having making sure that an appropriate agreement is in place with that agency because sometimes you would not believe the agency contracts I've seen that say things like you can never sue us no matter what right it's probably not enforceable but still you don't want to be signing somethi